THE HON'BLE SMT. JUSTICE P. SREE SUDHA
C.C.C.A.No.13 of 2022
JUDGMENT
1. Aggrieved by the final decree order dated 10.12.2021 passed in I.A.No.366 of 2012 in O.S.No.22 of 2001 on the file of the learned XII Additional Chief Judge, City Civil Court, Secunderabad, the appellants/Respondents/Defendants preferred this Appeal.
2. The parties hereinafter be referred to as arrayed in I.A.No.366 of 2012 for the sake of convenience.
3. One Shoba Rani @ Jyothi-respondent/petitioner/plaintiff filed an application under Order 20 Rule 18 read with Section 151 CPC before the trial Court seeking to pass a final decree in terms of Preliminary Decree dated 06.09.2007 passed in O.S.No.22 of 2001.
4. The petitioner-plaintiff herein would submit that she filed O.S.No.22 of 2001 for partition of agricultural land situated at Kaniapally Village, Koilakonda Mandal, Mahboobnagar District, along with other properties against the respondents-defendants 2 and the Court has passed a preliminary decree on 08.09.2007 in respect of the land in an extent of Ac.0-55 guntas in Sy.No.166, out of Ac.9-02 guntas in Sy.Nos.166, 173, 183, 185, 189, 190 and 191 and also for mesne profits.
5. The respondents-defendants herein filed their counter in the application by contending that the Court has partly decreed the suit by declaring that the plaintiff is entitled for Ac.0-55 guntas of land in Sy.No.166 and dismissed the claim pertaining to Item Nos.1 to 3 of plaint 'A' schedule properties and also movables in 'B' schedule and a decree was passed for mesne profits under a separate enquiry. They would further submit that the land at Kaniapally Village is still an undivided joint family property among the respondents, his father and other coparceners. They would also submit that the petitioner has to implead proper and necessary parties before seeking any division in terms of preliminary decree and without any notice to the persons in possession of the same, there cannot be any effective partition or division or allotment of her share in terms of preliminary decree and that without any effort to identify the land through process of survey by a competent Surveyor is not proper.
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6. Respondents in their additional counter stated that this trial Court has no jurisdiction to undertake the final decree proceedings as the petitioner prayed for partition of four items in plaint 'A' schedule and movables under 'B' schedule. The Court dismissed the claim pertaining to item Nos.1 to 3 of plaint 'A' schedule properties which are within the jurisdiction of trial Court, but item No.4 is situated at Mahboobnagar District, as such the petitioner ought to have taken steps for transfer of preliminary decree under Section 39 of CPC and it amounts to procedural irregularity and it is beyond the scope of Section 17 of CPC. As the objection was taken under Section 21 of CPC, the Court has to decide the said objection as to the territorial jurisdiction.
7. The trial Court considering the evidence on record and the arguments of both sides allowed the application by passing final decree in terms of preliminary decree by allotting Ac.1-15 guntas of land to the petitioner in Sy.No.166 as shown in the rough sketch of the Advocate Commissioner.
8. Aggrieved by the said order, this appeal is preferred by the appellants-respondents contending that the order of the trial Court is misconceived. Though, they relied upon the decisions 4 reported in NAHAR SINGH V/s. HARNAK SINGH1 and PAWAN KUMAR DUTT V/s. SHAKUNTALA DEVI2, the trial Court held that those cases are not applicable to the case on hand on the ground that they relate to specific performance of the suit and the present suit is for partition. The trial Court did not take into consideration regarding the identification of the property. The respondents-defendants also raised a dispute regarding the jurisdiction. They further stated that neither in the complaint nor in the preliminary decree, the boundaries of the agricultural land, which is sought to be allotted to the petitioner-plaintiff through final decree, were not mentioned and without any boundaries to the said extent, it is impossible to identify for demarcation. Appellants further stated that Advocate Commissioner was appointed in I.A.No.366 of 2012 and gave notice to the Appellants on 20.10.2016, a work memo was filed by the Appellants on 22.10.2016. Advocate Commissioner visited the property with the help of Village Revenue Officer and Government Surveyor and also secured the presence of two panchas and referred to a Tonch Map, prepared a report and in her report she stated the boundaries of schedule property as 1 1996 (6) SCC 699 2 (2010) 15 SCC 601, 5 identified by Surveyor and Village Revenue Officer, though no such boundaries were provided by the respondent either in the plaint or in the final decree and the Appellants made an objection. Advocate Commissioner referred to certain photographs showing the presence of the Appellant No.1 who refused to sign on the proceedings of the Commissioner. They further stated that no notice was issued to the neighbouring farmers and the demarcation of Ac.0-55 guntas of land was shown by the Commissioner without following due process of law. The Trial Court without considering the objections of Appellants passed final decree in terms of the report by allotting the land to the respondent. Therefore, the Appellants requested to set aside the final decree dated 10.12.2021.
7. Heard the arguments of both sides. Perused the entire record.
8. O.S.No.22 of 2001 is filed by Shoba Rani @ Jyothi against her father/defendant No.1 and defendant No.2 is the wife of defendant No.1. Plaintiff's marriage took place in the year 1998. In her marriage, defendant No.1 introduced defendant No.2 as his wife. As the defendant No.1 married during the subsistence of first marriage with the mother of plaintiff, plaintiff's mother 6 filed O.S.No.13 of 2000 and one Venkatamma filed O.S.No.12 of 2000 before Family Court, Secunderabad and the mother of plaintiff also gave a complaint against defendant No.1 under Sections 494 and 498-A of IPC. Defendant No.1 also filed a suit through his children through defendant No.2 i.e., O.S.No.256 of 2000 for declaration of title and possession. When she made an appearance in the suit, plaintiff came to know that defendant No.1 gifted item No.1 of 'A' schedule property to the defendant No.2. Then, the Plaintiff demanded for partition of the property on several occasions, but defendant No.1 was postponing the same on one pretext or the other. As she is entitled for half share in the family, plaintiff filed the suit.
9. Defendant No.1 stated that he married one Shakuntala in the year 1960 and she expired after giving birth to a daughter. Then, he married plaintiff's mother but she left his company during 1975-76 leaving the plaintiff with him. Again he married defendant No.2 in the year 1979 with the consent of plaintiff's mother. Defendant No.1 purchased Ac.6-20 guntas of land from out of item No.4 with his earnings and gifted the same in favour of defendant No.2 in the year 1999. Remaining extent of Ac.3- 20 guntas belongs to first defendant's father and his 7 coparceners. So far there is no division of Ac.3-20 guntas in item No.4 of plaint 'A' schedule property. Defendant No.1 purchased item No.1 of the plaint schedule 'A' from Geethanagar Co-operative Housing Society Limited about 18 years ago. In the year 1976, defendant No.1 purchased 55 Square Yards and constructed ground and first floor and gifted the same in favour of his minor sons in February, 2000. Item No.2 of plaint 'A' schedule belongs to defendant No.2. He stated that plaintiff has no right to question the property gifted or transferred by him either to the second defendant or others. He mainly contended that plaintiff is not entitled for partition.
10. The Trial Court considering the evidence on record partly decreed the suit in favour of plaintiff and held that the plaintiff is entitled for 55 guntas of land in Sy.No.166 of Kaniapally Village and dismissed other claim.
11. Plaintiff in the suit filed an application to pass final decree in pursuance of the said preliminary decree. The Trial Court considering the report of the Advocate Commissioner allowed the application by allotting Ac.1-15 guntas of land to the petitioner in Sy.No.166.
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12. The Appellants mainly contended that they filed a work memo on 22.10.2016 specifically requesting the Advocate Commissioner to demarcate the land, but in the report filed by the Advocate Commissioner on 01.12.2016, she specifically stated that she took the assistance of Village Revenue Officer and Government Surveyor in demarcating, identifying and also allotting the land to the share of petitioner and the Advocate Commissioner further observed that respondent No.1 was present, but he did not object or protest at any point of time during the course of commission proceedings but he refused to sign on the report. Advocate Commissioner further stated that point Nos. 1, 2, 4, 5 and 6 of the work memo filed by Appellants-respondents were considered by her. She also got prepared panchanama in the presence of villagers and the boundaries were identified. She stated that point No.3 of the work memo of the respondents is out of the scope of the warrant issued to her. Advocate Commissioner filed panchanama dated 22.10.2016 and also a map prepared by Surveyor. Rough sketch was prepared by her and the boundaries are as follows:
East: PWD Road(width - 50 feet) West : Sy.No.166 9 North: Survey Number 167 South: Survey number 166
13. Patently, it is clear that as per the preliminary decree, plaintiff is entitled for an extent of 55 guntas of land in Sy.No.166, but the Advocate Commissioner identified and demarcated the land in an extent of Ac.1-15 guntas in Sy.No.166 and filed the report before the Trial Court. The Trial Court also passed final decree by allotting Ac.1-15 guntas of land to the petitioner-plaintiff which is contrary to the preliminary decree passed by the said Court.
14. Learned counsel for the appellants-respondents further raised the contention that no boundaries were mentioned in the individual properties in each survey number mentioned in item No.4 of the plaint 'A' schedule properties and he mainly contended that boundaries were not mentioned either in the plaint or in the preliminary decree and thus, the respondents specifically requested the Advocate Commissioner to identify the land with the help of Village Map but the Advocate Commissioner failed to do so. The boundaries of the land to an extent of Ac.4-20 guntas in Sy.No.166/AA was shown in the gift settlement deed dated 17.11.1999 executed by defendant No.1 10 in favour of his wife defendant No.2. Further, learned counsel for the appellants relied upon the citation reported in Nahar Singh Vs. Harnak Singh and others3 in which it was held that "it is well settled that unless the property in question for which the relief has been sought for is identifiable, no decree can be granted in respect of the same." He also relied upon another citation reported in Pawan Kumar Dutt and another Vs. Shakuntala Devi and others4, in which it was held that "when there is no clear identity of the property agreed to be sold, the Courts are not expected to pass a decree which is not capable of enforcement in the courts of law."
15. The Trial Court has erred in not considering the principle laid down in the above citations and passed final decree contrary to the preliminary decree passed on 06.09.2007 as the extent of land in the preliminary decree was only 55 guntas of land, but the extent of land allotted under final decree in favour of plaintiff was Ac.1-15 guntas in Sy.No.166. Therefore, the order of the Trial Court is erroneous and is liable to be set aside. 3 1996 (6) SCC 699 4 2010 (15) SCC 601 11
16. In the result, the Appeal is allowed by setting aside the final decree passed by XII Additional Chief Judge, City Civil Court at Secunderabad on 10.12.2021 in I.A.No.366 of 2012 in O.S.No.22 of 2001.
17. Pending miscellaneous applications, if any, shall stand closed in the light of this final judgment.
____________________ P. SREE SUDHA, J Date: 22.11.2022 rev 12 THE HON'BLE SMT. JUSTICE P. SREE SUDHA C.C.C.A.No.13 of 2022 _____11.2022 rev